McGuire v Queensland Building and Construction Commission
[2018] QCAT 226
•12 July 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
McGuire v Queensland Building and Construction Commission [2018] QCAT 226
PARTIES:
DANNY MCGUIRE
(applicant)v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(respondent)
APPLICATION NO/S:
GAR115-16
MATTER TYPE:
General administrative review matters
DELIVERED ON:
12 July 2018
HEARING DATE:
10 November 2017
HEARD AT:
Toowoomba
DECISION OF:
Member Holzberger
ORDERS:
1. The review application is dismissed.
2. The Queensland Building and Construction Commission’s decision dated 6 April 2016 to disallow a claim under the Statutory Insurance Scheme in part is confirmed.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – administrative review – building and construction – application to review a decision of the Queensland Building and Construction Commission – the decision under review, the jurisdiction of the Tribunal to review other decisions
Queensland Building and Construction Commission Act 1991 (Qld), s 86
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
M Stretton, solicitor of Holding Redlich Lawyers
REASONS FOR DECISION
Danny McGuire has applied for a review of an internal review decision of the Queensland Building and Construction Commission (the Commission) made on
6 April 2016 (‘the decision’) to disallow part of a claim made by Mr McGuire under the statutory insurance scheme in relation to incomplete building work at his property at 1346 Gatton-Helidon Road, Grantham (‘the property’).
The factual background of the matter is long and complicated. It is usefully and accurately summarised in the written submissions of the Commission dated
17 January 2018 set out below (emphasis original, footnotes omitted):[1]
[1]Respondent’s outline of submissions filed 17 January 2018, [18]-[35].
18. In or around February 2012, the Applicant was the recipient of a donated house, which was relocated to the Property by A Redhouse House Removals Pty Ltd.
19. In or around May 2012, the Applicant entered into a contract with a builder, Precision Building Qld Pty Ltd (Precision Building), for the performance of building works at the Property (Contract). The Contract and accompanying documentation stated that:
(a)The Contract price was for $47,890.00;
(b)the Contract was for the supply of materials and the supervision of labour only; and
(c)all labour for the Contract works was funded by Group Training Association Queensland and Northern Territory (GTAQNT).
20. On or about 9 August 2012, the building works at the Property ceased and were incomplete.
21. On or about 18 October 2012, the Commission received a complaint from the Applicant with respect to alleged defective building work and incomplete building work at the Property (Complaint).
22. Following investigation of the Complaint, the Commission determined that:
(a)a number of items of the Complaint were items of incomplete building work at the Property;
(b)a number of items of the Complaint were items of defective building work at the Property;
(c)however, it would be unfair within the meaning of section 72 of the QBCC Act to issue a direction to rectify to Precision Building in respect of the defective building work.
23. Following referral of the Complaint to the Commission’s insurance services, on or about 20 August 2014, the Commission decided to:
(a)accept the Applicant’s claim under the Statutory Insurance Scheme insofar as it related to items 1, 2, 3, 5, 6, 9, 10, 12, 13, 16, 17, 18, 19, 23, 24 and 26 of the scope of work under the Contract; and
(b)decline the Applicant’s claim under the Statutory Insurance Scheme insofar as it related to items 4, 7, 8, 11, 14, 15, 20, 21, 22 and 25 of the scope of work under the Contract.
24. On or about 5 September 2014, the Commission approved a scope of work for the Applicant’s non-completion claim under the Statutory Insurance Scheme (Scope of Work).
25. At the relevant time, the Applicant was given notice of the Scope of Works and, in fact, accepted the Scope of Works by signing that document.
26. On or about 10 October 2014, the Commission approved a quotation for the completion of the Scope of Work obtained from Australian Building & Construction Group Pty Ltd (ABC Group), in the sum of $89,446.83.
27. On or about 23 December 2014, the Commission approved a claim on behalf of the Applicant under the Statutory Insurance Scheme for alternative accommodation, removal and storage in the amount of $5,000.00.
28. On or about 25 February 2015, the Applicant entered into a contract with ABC Group for the completion of the Scope of Work at the Property, and on or about 31 March 2015, the Applicant agreed upon the Scope of Work to be performed at the Property.
29. On or about 11 June 2015, the Commission approved a variation to the Scope of Work, to extend the Scope of Work.
30. On or about 13 August 2015 and on or about 25 August 2015, the Commission approved additional alternative accommodation, removal and storage claims on behalf of the Applicant under the Statutory Insurance Scheme in the amounts of $1,000.00 and $2,070.00 respectively.
31. In or around August 2015, the Commission made a payment to ABC Group as part of the Applicant’s insurance claim in the amount of $10,533.20.
32. On or about 27 August 2015, the contract between the Applicant and ABC Group was mutually abandoned.
33. On or about 8 December 2015, the Commission remade the decision to accept the Applicant’s claim under the Statutory Insurance Scheme, deciding that:
(a)the Applicant’s claim under the Statutory Insurance Scheme is allowed in part, in that items 1, 2, 3, 5, 6, 9, 10, 12, 13, 16, 17, 18, 19, 23, 24 and 26 of the scope of work under the Contract are allowed; and
(b)the Applicant’s claim under the Statutory Insurance Scheme would be paid to the Applicant by way of a cash settlement of the approved amount of the Applicant’s claim, less relevant deductions.
34. On or about 6 January 2016, the Commission received an Internal Review Application for the Applicant in respect of the Commission’s above decision.
35. On or about 6 April 2016, Kellie Lowe, Acting Commissioner of the Commission, made the Decision, and determined that:
(a)the Commission did not make a decision with respect to the Scope of Work on 8 December 2015. It is not within the scope of the internal review to review the Scope of Work;
(b)the updated cost to carry out the Scope of Works is $92,186.00;
(c)the maximum entitlement under the Statutory Insurance Scheme for alternative accommodation, removal and storage expenses is $5,000.00.
(d)accordingly, the Applicant’s entitlement under the Statutory Insurance Scheme is $92,186.00 less $3,070.00 invalidly paid to the Applicant for additional alternative accommodation expenses, being $89,116.00;
(e)the Applicant’s entitlement under the Statutory Insurance Scheme should not be reduced to account for the payment made to ABC Group; and
(f)the Applicant’s claim should be settled by way of cash settlement to the Applicant in the amount of $89,116.00.
Those facts were originally contained in the Commission’s outline of submissions handed up at the hearing and provided to Mr McGuire on that date. His subsequent submissions take no issue with that statement of facts and I understand them to be non-controversial. Mr McGuire would say, however, that there are other facts relevant to the matter that have been omitted.
Firstly, Mr McGuire says that ABC Group were unable to carry out the works in the scope of works because the building permit had lapsed on 22 December 2012.[2]
[2]Statement of Danny McGuire filed 17 May 2018, [1].
Secondly, McGuire says that new flood laws passed by the Lockyer Valley Council place the property in a high risk area.[3] He clarified this in his evidence and in his written submissions. He also filed in the document apparently authored by the Lockyer Valley Council titled ‘Temporary Local Planning Instrument 21\2015’.[4]
[3]Ibid [4].
[4]Document dated 1 February 2015 by Lockyer Valley Council, although no evidence as to the date it took effect was provided.
Mr McGuire’s evidence is that as a result of the temporary planning instrument, further work will need to be done to make the home compliant, including replacement of the stumps and slab.
Mr McGuire’s application filed 4 May 2016 clearly identifies the decision to be reviewed as the internal review decision of 6 April 2016. The application provides:[5]
The decision is wrong for the following reasons:
Assistant Commissioner Lowe (“the Decision Maker”) erred in:
1. failing to review the scope of works referred to in the decision;
2. failing to decide to increase the scope of works to include work necessary to ensure that the property the subject of the decision (“the Property”) will be habitable and compliant with the law;
3. failing to decide to allow a settlement sum in an amount reasonably sufficient to meet the costs of completing the works (estimated to be approximately $170,00) so that the Property will be habitable and compliant with the law; and, or in the alternative to this paragraph 3
4. failing to decide that the QBCC should discharge its liability to the Applicant by arranging and paying for the works (sufficient to ensure that the Property will be habitable and compliant with the law) to be performed by a licensed contractor appointed by the QBCC.
[5]Application to review a decision filed 4 May 2016, Part C.
The facts relied on by Mr McGuire in his application, his statement of evidence, oral evidence and his written submissions all related to the adequacy or otherwise to the scope of works. None address the decision under review.
The Commission approved a scope of works for Mr McGuire’s non-completion claim on 5 September 2014, which it says he accepted, and subsequently varied the scope of works to extend it on 11 June 2015. Mr McGuire’s current application cannot be taken to be a review of either of those decisions. Mr McGuire has not applied to the Tribunal for a review of those decisions.
The Commission submits that there is no evidence by Mr McGuire or otherwise which goes to the disallowed items, and accordingly on the material and evidence given at the hearing the Tribunal could not reasonably be satisfied that the decision is not the correct and preferable decision.[6]
[6]Respondent’s outline of submissions filed 17 January 2018, [49]-[53].
The only evidence in relation to the decision before the Tribunal is the statement of Brendan O’Halloran, filed in the Tribunal on 23 June 2017. Mr O’Halloran gave evidence of his review of the decision with detailed reasons for the disallowed items. He concluded that Mr McGuire’s non-completion claim had been assessed according to the Queensland Building and Construction Commission Act 1991 (Qld) and the Commission’s policy and was the correct and preferable decision. Mr O’Halloran was not cross-examined by Mr McGuire in relation to his evidence.
There is simply no material before the Tribunal which indicates that the decision is not the correct and preferable decision in all the circumstances. I accept the Commission’s submissions in that regard.
I also accept the Commission’s submissions in relation to the Tribunal’s lack of jurisdiction to deal with the other issues raised by Mr McGuire during the course of this review.
Mr McGuire cannot seek to review the scope of works decision which was made in September 2014 by attacking it in material supporting an application to review a different decision.
He cannot seek to review the quantum of that part of his non-completion claim which has been accepted by the Commission, because it is not a reviewable decision under s 86 of the Queensland Building and Construction Commission Act 1991 (Qld).
In those circumstances, the Tribunal orders:
(a)The review application is dismissed.
(b)
The Queensland Building and Construction Commission’s decision dated
6 April 2016 to disallow a claim under the Statutory Insurance Scheme in part is confirmed.
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